Marrying Without Walī’s Consent In The Ḥanafī Madhhab

Hello.
I thank you for your time and would like to ask a question about wali during marriage. I read that some respected Hanafi scholars say that consent of a wali is not required when a girl gets married. So I wonder why they say that when there are hadiths stating otherwise [al-Tirmidhi (1102) and Tirmidhi (1101)].
Thank you

(Question published as received)

Answer:

In the name of Allāh, the Most Gracious, the Most Merciful

As-salāmu ‘alaykum wa-raḥmatullāhi wa-barakātuh

It is a breath of fresh air that as an enthusiast, you chose to seek clarification on this issue instead of following the general trend of debasing an opinion one does not understand. One should not make his own deductions from the Qur’ān and Ḥadīth. Each Madhab has been codified through substantiated and authenticated evidences from the Qur’ān, Ḥadīth, Ijmā’ (consensus) and Qiyās (analogy). As Muqallids, we follow our Madhab without delving into its evidences and counter-evidences. [1]

For clarity on the issue and contentment of those who may feel that the Ḥanafī stance is void of any basis, allow us to explain the ruling on having a walī’s consent for the validity of Nikāḥ according to the preferred opinion within the Ḥanafī Madhab.

The Ḥadīth you referenced is:

‘A’ishah Raḍiyallāhu ‘anhā narrated that: The Messenger of Allāh Ṣallallāhu ‘alayhi wa sallam said: “Whichever woman married without the permission of her walī her marriage is invalid, her marriage is invalid, her marriage is invalid. “If he has consummated the marriage”, then she has the right for Mahr (dowry) in lieu of what he enjoyed from her private part. If they disagree, then the Sultan is the walī for one who has no Walī.” [2]

The Shāfi’iyyah use this evidence to rule that it is a prerequisite for the validity of Nikāḥ to have permission of the bride’s/woman’s walī (guardian). [3]

The Ḥanafī view is that there are two types of wilāyah (guardianship):

Compulsory – If the girl is young or insane then her Walī’s consent is compulsory.

Advisable – If she is bālighah (mature), then too it is advisable for her to marry with her walī’s consent. However, it is not a prerequisite for the validity of Nikāḥ. [5]

This view has been substantiated from Qur’ān, Ḥadīth and Qiyās and is recorded in majority of the Ḥanafī texts.

Let us look at some of these evidences:

Qur’ān

Allah Ta‘ālā states: “…And a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her…” (Al-Aḥzāb:50)

Allāh Ta‘ālā says in Surah al-Baqarah, Verse 30:

“So if he divorces her she shall not be lawful for him afterwards until she marries another husband; then if he divorces her, there is no blame on them both if they return to each other (by marriage), if they think that they can keep within the limits of Allah, and these are the limits of Allah which He makes clear for a people who know.”

The part – ‘Until she marries another husband’ denotes that she has the right of marrying herself.

Also, ‘there is no blame on them both if they return to each other (by marriage)’ shows she has the right to return to her husband by her own will without the consent of her guardian. [6]

Only some narrations have been mentioned here for the benefit of readers. If one wishes to read more, he may refer to the commentary of Mukhtaṣar al-Ṭaḥāwī by Imām Aḥmad ibn ‘Alī Abū Bakr al-Jaṣṣāṣ al-Rāzī al-Ḥanafī (d.370 AH).

Qiyās

The logical explanation to this issue is that a man who has full control over his wealth is permitted to use his assets as he wishes, because he has complete discretion. Hence, he is also permitted to marry without the consent of his guardians. This view is unanimously accepted. Thus, a woman who has full control over her wealth is also entitled to make her own decisions. The analogy would fit perfectly here, because just as an insane male does not have control over his wealth according to Sharī‘ah, and is dependent on his walī’s (guardian’s) discretion, likewise a woman will also be governed thus. This view is also unanimously accepted and if it is applicable to males, it would also apply to females. [8]

Our Answer to the Ḥadīth referenced in the question

Due to the existence of conflicting narrations, we reconcile between the two narrations, and say that the Ḥadīth of ‘A’ishah Raḍiyallāhu ‘anha is intended for a minor girl as she will require her walī’s consent prior to Nikāḥ

The actual view of ‘A’ishah Raḍiyallāhu ‘anhā was that it is permissible for a mature woman to marry without the consent of her guardian.[9].[10] This shows that the Ḥadīth is not to be taken on its apparent rather contextualised to reconcile with her practice.

In short, it is not advisable for a mature, sane woman to marry without the consent of her walī. However, if she does, the Nikāḥ will be valid.

And Allah Ta‘ālā knows best (Mufti) Bilal al-Mahmudi

Checked and Approved by,
Mufti Faisal al-Mahmudi

Concurred by,

Mufti Luqman Hansrot

[Note: According to the preferred view of the Hanafi school, the marriage of a bālighah woman will only be valid if the woman marries a compatible partner. If she marries an incompatible partner without her walī’s consent, the marriage will not be valid.

[1] For more information on Taqlīd, kindly refer to the following write-up by Muḥtaram Muftī Zameelur-Raḥmān:

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